Blueprint for Democracy: Democracy and the Courts
- Angela Lin
- Jan 28, 2022
- 1 min read
Common Cause Ohio and the Fair Courts Alliance teamed up in the fall of 2021 to present a series of webinars focused on the courts and democracy. A Blueprint for Democracy: Democracy and the Courts consisted of three forums where expert panelists discussed how we can develop a fair courts system to improve our democracy.
You can watch the YouTube recordings and read a recap of each forum below!
Ohio Criminal Sentencing Database
Information is power, especially in today’s age where information and data are readily available and often an indication of transparency. In order to ensure equal justice in our criminal justice system, Ohioans need to have a better understanding of the problems in Ohio’s courts. However, it’s nearly impossible to gain that insight into our courts due to a lack of standardized, aggregate data regarding pre-trial and sentencing practices in relation to race, gender, ethnic background, or religion.
Ohio Supreme Court Chief Justice Maureen O’Connor has been advocating for a centralized database, known as the Ohio Sentencing Data Platform, that will include the collection of statewide criminal justice sentences, making information accessible, shareable, and reportable. The database will allow judges from counties across the state to know what other judges are doing in terms of similar sentences for similar offenses. This data will also importantly provide insights for researchers, policy makers, advocates, and the public to determine whether racial disparities or other inconsistencies exist from court to court.
The Ohio Criminal Sentencing Commission, an affiliate office with the Ohio Supreme Court, was created in 1990. In September 2019, Chief Justice O’Connor asked the Commission to convene a Uniform Sentencing Entry Ad Hoc Committee. The committee has contracted with the University of Cincinnati Information Technology Solutions Center to create this sentencing database that will improve transparency, allow judges to use data to inform decision-making, and make data accessible for the public, practitioners, and research.
To discuss this database and why it’s necessary to create a more equitable justice system in Ohio, we hosted a forum with four distinguished experts in the first webinar of our Blueprint for Democracy Series. Here are our key takeaways from each speaker.
Sara Andrews, Executive Director of the Ohio Criminal Sentencing Commission
Felony sentencing is exceedingly complex, and the available sentencing data primarily focuses on people sentenced to prison.
The destination is important, but to understand the true dynamics of sentencing, so is the road.
Sentencing is not just a number — it’s a story. When you tell the story of sentencing, you help inspire engagement of the courts and judges.
The Ohio Sentencing Data Platform will, for the first time, generate a standardized statewide felony sentencing template to ensure clear, comprehensible sentences and promote confidence in the system.
Ohio Supreme Court Justice Michael Donnelly
Judges are completely insulated from appellate review if they determine the sentence is appropriate to protect the public. Meaningful appellate is dead in the state of Ohio due to some rulings that eliminated the check that the Court of Appeals has on the system.
When there is disparate sentencing for similar crimes, it is not necessarily the fault of the individual judges involved. It’s our sentencing laws and the lack of data that exists and the way they’re written. As it is now, judges have no idea what other judges are doing in terms of similar sentences, so this kind of disparity (that’s full of racial and other kinds of disparity) is a result of the way our current laws are designed.
All reform that has occurred in our criminal justice system was initially met with some resistance.
The database is not currently designed to cover misdemeanor offenses or the juvenile court system, so expansion to include those cases will be critical once this platform is established.
Gary Daniels, Chief Lobbyist for ACLU Ohio
There are two major concerns with the sentencing database
The data is drilled down to counties of similar size (i.e. Cuyahoga County, Hamilton County, Franklin County), it doesn’t drill down to the individual county, individual courts, or individual judges
The proposed rule of superintendents (the rules that govern the way courts operate in Ohio) will essentially change the definition of case document and administrative document so that the data may not be available to the public or may only be available to the public under certain circumstances
It sounds like data will only be available via the platform and that it is completely within the discretion of the Ohio Criminal Sentencing Commission about what they release — so if they don’t want to release certain data, they don’t have to
The sentencing database should be treated as simply the first step in reform, because data is just data, records are just records. Even if we have all this data, if courts don’t do anything with the information or if the judges don’t change their behaviors given the data they have access to, then nothing really changes.
Judge Laurel Beatty Blunt, Ohio 10th District Court of Appeals
A lot of opposition to the sentencing database stems from fear of the media or politics, particularly because all judges in Ohio are elected.
The data from the sentencing platform is useful not just for judges, but also for the legislature. A judge in Columbus has more resources than a judge in rural Ohio. That judge in Columbus has more options than just sending someone to jail or prison for drug possession, for example. This database would give legislators the information they need to show where they should put treatment centers.
This database may increase taxpayer dollars, but it’s better to put that money towards establishing a good database than towards shuffling people around prisons, which is where most of our taxpayer dollars are going towards currently.
This platform would be valuable for voters because it would give you information on which judges you might want to vote for, how you want your justice system that is run with your taxpayer dollars to go, and what we want to do with people who have been convicted of a crime.
The Ohio Sentencing Data Platform will improve our criminal justice system’s ability to treat people more fairly and get rid of systemic inequality and explicit and implicit biases in our system, but it’s just the first step in reforming our criminal justice system in Ohio. There needs to be transparency to let the public know how the system is working, as well as further education once the database is established to let people know how to use it.
The database is currently being piloted in 15 percent of Ohio’s counties, but it will need more legislative funding in order to be successfully implemented in courtrooms across the state. You can take action in ensuring that the Ohio Sentencing Data Platform brings fairness, transparency, and accountability to our court system by supporting the project and contacting your lawmaker to tell them they should support funding for the Ohio Sentencing Data Platform.
Judicial Recusal & Ethics
In order for our law to work, we need a strong judicial code of ethics. This involves rules surrounding judicial recusal and establishing disqualification standards. Judges have an important role in making fair decisions and using their power to follow the law, regardless of outside interests and influence.
Recusal is an important way that judges are able to remain impartial before the law. Recusal means stepping away from a decision where there might either be the appearance or the actual reality of a conflict of interest. When it comes to actual or perceived conflicts of interest, judges have the responsibility to recuse themselves from hearing the case.
However, in Ohio, judges are not required to recuse themselves, even in cases that concern their own campaign contributors or family members. The topic of dark money and campaign contributions is particularly relevant in Ohio after the FirstEnergy bribery scandal that unfolded in 2020.
These current issues surrounding judicial ethics in Ohio makes this forum even more timely and important. Our panelists dive into the issue of judicial recusal in Ohio by exploring how special interests influence the judicial selection process and decisions making and how we can enforce higher ethical standards in our courts.
Billy Corriher, writer, consultant, and advocate for fair courts
Rules surrounding judicial recusal are pretty vague. Only a handful of states have specific guidelines that say judges can’t hear cases involving campaign contributors above a certain level. In most states, judges just have a vague standard that says they can’t hear cases where they might risk appearing biased.
In Ohio, it’s left up to the individual judge to decide when hearing a case might make them appear biased.
Judge Jeremy Fogel (Retired), Executive Director of Berkeley Judicial Institute
The four main sources of ethical standards are:
Legislation
Codes of Conducts
Case Law
Tradition & Social Context
You can enforce ethical standards through higher courts, disciplinary bodies, and judicial councils.
In jurisdictions that elect judges, voters can enforce these ethical standards. Judicial elections cause a lot of problems when it comes to propriety/impropriety and effective campaign contributions, but voters can get involved and organize to push back and elect a judge that follows the ethics rules.
Douglas Keith, Counsel in the Brennan Center for Justice’s Democracy Program
The court’s power comes from public confidence.
Polling shows a steep decline in public confidence in the judiciary
2021 Gallup poll: only 54% of Americans have a great deal or fair amount of trust in the judiciary (down from average of 68% over the previous 25 years)
2019 National Center for State Courts poll: only 65% of respondents had confidence in state court systems (11% decrease from 2018)
New polling: only 32% of the public thinks that the U.S. Supreme Court makes decisions based on law rather than politics
The reality of modern judicial elections doesn’t help increase public confidence in the judiciary. Most states that hold elections have had a justice run in a million-dollar race since 2014. When judicial candidates run attack ads on their opponents, this further distorts the public’s view of the justice system.
Judge Sarah O’Brien, Retired WI Circuit Court Judge
In Wisconsin, two large business lobbying groups drafted an ethics rule that was adopted in 2010. The ethics rule stated that a judge is not required to recuse themself in a proceeding based solely on the receipt of a lawful campaign contribution.
60 retired judges filed a petition with the Supreme Court to change the ethics rule to a proposed recusal rule with a set dollar amount for each level of judge. The petition was denied without a public hearing in 2017.
Our panelists highlighted precisely why we need strong judicial ethics rules. In 2022, we have really important judicial elections coming up, with two seats on the Ohio Supreme Court and the Ohio Chief Justice up for grabs. The Ohio Chief Justice is particularly important, since they have the ability to set the standards for when justices need to recuse themselves.
As Ohio is electing judges, we have the power as voters to hold them accountable. Pay attention to the upcoming judicial elections and attend judicial forums and debates. Talk to candidates about their philosophy on recusal to ensure we’re electing judges that believe they need to avoid the appearance of impropriety. You can learn about the candidates running in the 2022 judicial elections at judicialvotescount.com so you can make an educated vote at the ballot box.
The Intersection Between Race, Law, and Democracy
Systemic racial inequities can be found in every dominant institution, and our courts are no exception. Structural racism and implicit biases within the law threaten the legitimacy of our courts, while contributing to a deep district of our criminal justice system. Reform is critical to making systemic change in our courts and having diverse judges on the bench reflect the communities that they serve.
Tom Roberts, the State Conference President of the Ohio NAACP, helped kick off the forum by outlining the Ohio Fair Court Alliance’s vision for the courts. Our vision for fair courts is:
A diverse bench of knowledgeable judges represent and are accountable to the communities they serve.
Courts treat all people with dignity, respect and fairness (and we know this because courts have transparent data practices).
Judges decide cases on their merits, based on law and fact, and free from corrupting influences of money, politics, and bias.
Courts are agents of repairing harms, and bring about healing for individuals and communities, rather than compounding punishment and oppression.
Our expert panelists in our forum, The Intersection Between Race, Law, and Democracy, shared many insights into the actions we need to take and the conversations we need to have in order to truly reform our courts and eliminate the systemic racial inequities and biases that inhibits our criminal justice system from achieving fair and equitable justice. Here are some highlights from our conversation.
Judge Ronald Adrine, Retired Cleveland Municipal Court
Systemic racism is structural in nature, while implicit bias is a lens through which individuals view the world.
When judges are aware of the fact that institutions are created by individuals with implicit biases that may impact their policies, judges can take that into consideration when making decisions and set concrete goals to eliminate bias in their courtroom.
Procedural fairness relies on Respect, Understanding, Neutrality, and Voice.
Kyle Strickland, Senior Legal Analyst at the Kirwan Institute for the Study of Race & Ethnicity at Ohio State University
We often ignore the systems, structures, and policies in place that lead to unequal outcomes and instead try to blame individuals and entire communities. When we do that, we leave communities behind and avoid responsibility for solving these systems of inequality.
It’s important to have uncomfortable conversations and risk being “too divisive” rather than ignoring these issues of systemic racism and inequality because when we don’t talk about these issues, we create a vacuum filled with hateful rhetoric.
The multi-racial democracy we have today is a relatively new concept that’s only 60 years old after the 1965 Voting Rights Act. That democracy is under threat today, especially with the voter suppression laws and the lies about voter fraud that were the same practices and messages that people were pushing during Reconstruction and the Jim Crow Era.
We have to reckon with our history, otherwise we lose sight of how we got here and where we can go moving forward.
The issues of racial justice and economic justice are all interconnected to issues of our multi-racial, multi-ethnic democracy.
Racial equity is not a zero-sum game. Progress for some is not an attack on everybody else.
Rev. Raymond Greene, Jr., Executive Director of Freedom BLOC
In order to create this change, we have to begin small on a micro level. Start by talking to your neighbors and organizing within your community. This lets us build a system of accountability, which influences the court system and voting system.
We have to start getting the voices of everyone involved heard, and we have to unite our voices inside our communities.
Maria Bruno, Public Policy Director at Equality Ohio
It’s important to name being a white advocate in this space and to recognize the limitations on your perspective. When you are able to make yourself uncomfortable and recognize the privilege you have as being a white ally for racial justice, you’re able to uplift the voices and experiences of Black people and people of color.
We often think of the law as something that should be punitive instead of a more victim-focused system, which leads us to care more about whether someone is punished rather than the person being taken care of.
We need to be critical of our judicial candidates and prosecutorial candidates by paying attention to judicial races, going to judicial forums, and looking at donors lists to see whether they are being influenced. We can, and must, use the campaign process to decide whether a judge is holding themselves to a high-enough standard to deserve that position.
All the panelists then reflected on what their vision of justice and our courts looked like, as well as what reforms need to occur immediately. Many points were brought up, including diversifying the bench, jury reform, automatic voter registration, Electoral College reform, national voting rights legislation, decriminalizing poverty, and reevaluating how we police cities. We need to talk about race and class and how capitalism has created competition for limited resources that often pit races against each other. The race class narrative is one we must discuss in order to have real conversation among people of different identities.
Most importantly, we can’t give up hope and we can’t give up the fight. Systemic racial inequities create disillusionment and despair, but we have the power to organize and demand better of our institutions and elected officials. By connecting voting to people’s everyday lives and finding issues that our communities care about, we are able to build a strong coalition of individuals that advocate for racial equality and justice.
As much as we want to believe that our law and democracy operates fairly and equitably for everyone, the reality is that the courts disproportionately affect people of color. The death penalty, which is still in effect in Ohio, is deeply flawed, racist, and full of errors, impacting the lives of many inmates, particularly Black people. One action you can take to help create a better criminal justice system in the state is by joining the movement to abolish the death penalty. You can write to your lawmakers to let them know you support legislation that repeals this expensive practice in Ohio.